At 02:55 PM 2/11/99 +0100, you wrote:
>
>A trademark is not only a string of ASCII characters, it is (potentially) a
>logo that is immediately recognizable even for people that do not read.
>
>I don't know if you have the same spot in the States, but in France
>McDonalds show a baby on a swing (about two years old), that sees the
>McDonalds yellow-and-red logo otside the windows. As the swing swings, he
>sees it only for part of the time, and he smiles when he sees it, and cries
>when he doesn't.
>
>The message is clear: the "trademark" is recognizable by a baby.
>The DNS, for the time being, is restricted to strings of ASCII characters,
>and is not able to to distinguish between two companies with different logo,
>but same char string.
>
This is an interesting input here. In my situation, the District Court
said that
"EPIX" and "epix.com" are "the same mark." Although my side prevailed
because there was no likelihood of confusion, when the other side appealed,
in my response I appealed that ruling by the judge. (A prevailing party on an
appeal is allowed to raise issues that detract from its '"victory" so I raised
several such issues.) As authority, I'm citing a California case concerning
the Century 21 real estate folks -- the case recited how the trial judge had
in fact gone out into the 'burbs looking at the actual lawn signs of the two
parties in order to make his decision. What I conclude is that a court has
no basis for saying that "EPIX" and "epix.com" are the "same mark" based
on the domain name alone, since you can't "look at the lawn signs" in a
computer, so to speak.
So maybe you technical folks might think of a solution. Here's an extreme
one: make "epix.com" into [epix.gif].com. There's the logo. Would take a
hurkin' big address space, I know, but we're a long ways from Windows 3.1
and even earlier when we were limited to 3 character extensions. But can
you imagine your search engine coming back with a page full of logos
rather than a list of dry old ASCII characters? Fascinating!!
(Lest anyone wonder why I post intimate details of this litigation on the net,
let me add that I am not "trying this case in public." The case is already
tried, we're on appeal, and everything I say is already a matter of public
record in the files of the 9th Circuit Court.) (There are Extracts of Record
that remain confidential.)
Bill Lovell
